In
Mayevidence came to light that the Department of Justice had obtained
two months of phone records and email correspondence of over 100 AP
reporters, had named Fox News reporter James Rosen a “criminal
co-conspirator” under the Espionage Act to justify issuance
of a subpoena to reveal his sources, and had obtained the personal
emails and phone records of Rosen and Rosen’s parents. On July
12, Attorney General Eric Holder continued to twist in the face of
buffeting from the press, Congress, and civil rights advocates, sending
President Obama a report not in defense of his actions but in partial
reversal of them, promising changes to DOJ policy on leak investigations
(changes that will make it somewhat more difficult for DOJ to seek
warrants for journalists’ records in future).

Through the tortured
testimony of Holder before the House Judiciary Committee (in which
he contradicted himself on the key point of his personal knowledge
and approval of the surveillance), freedom loving Americans have come
to realize that the Department of Justice under Holder has felt unconstrained
by the limits of the Constitution. Holder’s tenure has been
embattled over several scandals. The latest DOJ media surveillance
scandal has added the media and liberal members of Congress to the
list of those alienated by the Attorney General’s actions, the
conservative members of Congress having been alienated long ago.

The Attorney
General testified falsely to Congress concerning his knowledge and
approval of media surveillance, rose at first to defend actions that
are patent violations of the First Amendment, and now,made to account
for the abuses, has backed down, tacitly admitting that the actions
of DOJ were abuses. The repeated scandals, disingenuous testimony
under oath, lack of regard for legal limits on the exercise of power,
and negligent management reveal fundamental and inexcusable failings
in Holder that make his removal from office a legal imperative.

Among the many
changes made by DOJ, the new guidelines supplied to Obama on July
12 forbid the targeting of journalists who are pursuing “ordinary
newsgathering activities” and forbid use of warrants against
journalists if the target of the investigation is someone other than
the reporter, e.g., a government official who is leaking classified
information to a journalist. In addition, contrary to DOJ’s
prior practice, the department will now inform affected media of subpoenas
that seek journalists’ phone records and emails unless the Attorney
General determines that doing so would pose a threat to the DOJ investigation
and, in any event, DOJ would so inform affected media no later than
90 days after issuance of subpoenas for journalists’ records
and correspondence.

The changes come
from one stung by the reaction to the DOJ abuses but do not go far
enough to guard against future abuses. While specific aspects of DOJ
investigations of leaks may have to remain confidential to protect
the lives of Americans in service to their country, there is no justification
in the ordinary course for not serving journalists whose records are
sought notice that DOJ is seeking a subpoena, thereby affording them
and media organizations the opportunity to challenge the request before
documents are obtained. One sided government motions for issuance
of a subpoena invite a misprision of justice because those ex parte
submissions deny federal judges an opportunity to assess defenses
against subpoena issuance.

On May 15, 2013,
the Attorney General delivered sworn testimony before the House Judiciary
Committee. In that testimony, he said that he had recused himself
from the leak investigations to avoid a conflict of interest, plainly
suggesting that he was unaware of DOJ’s media surveillance.
The AG said that Deputy Attorney General James Cole conducted the
AP investigation and ordered the subpoenas. Holder also specifically
denied knowledge of the Rosen investigation, stating under oath: “.
. . that is not something that I’ve ever been involved in, heard
of or would think would be a wise policy.” But a week later,
on May 23, 2013, media reports began circulating that in fact Holder
had personally signed off on the Rosen investigation and Holder has
since admitted to doing so.

Those who occupy
the post of Attorney General of the United States swear an oath to
uphold the Constitution and laws of the United States. While many
prior Attorneys General have fallen from grace or have abused the
power of their offices, each is legally obliged to be beyond reproach
because it is the Attorney General’s duty to uphold and enforce
the nation’s laws. Obviously one who breaks the law himself
cannot be trusted to enforce the law. Those who do, who are caught
and who even admit the wrongful act(whether it be false testimony
before Congress or other acts that are contrary to the Constitution
or the laws of the United States) are unfit to remain in office. Once
that basic trust is broken, there is no assurance that the Attorney
General will abide by the laws in future.

That is the essential
problem with Eric Holder continuing to serve as Attorney General.
Retaining him in that post condones prior wrong doing and abuses of
power, reducing the stature of the office and making it impossible
to trust that Holder will follow the law in future. In a very real
sense, keeping a person in the position of Attorney General after
he or she has been shown to have conducted unconstitutional or otherwise
illegal operations makes a mockery of the rule of law. Indeed, it
impugns the integrity of all who through failure to remove the Attorney
General condone the prior bad acts. It also casts aspersion on the
many honest DOJ attorneys and employees who do uphold the highest
standards of legal ethics.

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In the end, of
course, President Obama remains culpable for the failings of his own
Attorney General. Whatever may be argued about Obama’s alleged
lack of awareness of Attorney General Holder’s unconstitutional
and otherwise unlawful actions while those actions were occurring
(a professed ignorance that is hard to believe), the fact remains
President Obama is standing behind Attorney General Holder (and, so,
presently condones the bad acts). Failing to remove Holder from office,
Obama is fully culpable for Holder’s actions.

Jonathan
W. Emord is an attorney who practices constitutional and administrative
law before the federal courts and agencies. Congressman Ron Paul calls
Jonathan "a hero of the health freedom revolution" and says
"all freedom-loving Americans are in [his] debt . . . for his courtroom
[victories] on behalf of health freedom." He has defeated the FDA
in federal court a remarkable eight times, seven on First Amendment
grounds, and is the author of Amazon bestsellers The Rise of Tyranny, Global Censorship of Health Information, and Restore the Republic. He is the American
Justice columnist for U.S.A. Today Magazine and the host of “Jonathan
Emord’s Truth Trial” on the GCN Radio Network (visit gcnlive.com
and emordtruthtrial.com).
For more info visit Emord.com and join the Emord FDA/FTC Law Group on
Linkedin.

That
is the essential problem with Eric Holder continuing to serve as Attorney
General. Retaining him in that post condones prior wrong doing and abuses
of power, reducing the stature of the office and making it impossible
to trust that Holder will follow the law in future.